Leon v. Danaher Corporation et al

Filing 40

ORDER ADOPTING REPORT AND RECOMMENDATIONS 30 the Objections (Doc. 37) raised by the Plaintiff are OVERRULED, Motion to Dismiss Case 13 is Granted and this action is terminated, A Final Judgment shall enter separately. Signed by Judge David C Bury on 8/30/11. (ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael A. Leon,

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Plaintiff,
vs.

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Danaher Corporation, et. al.,

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Defendants.

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CV 10-587-TUC-DCB
ORDER

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This matter was referred to the United States Magistrate Judge

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pursuant to 28 U.S.C. §636(b)(1) and the local rules of practice of this

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Court, LRCiv 72.1, for a Report and Recommendation on the Defendants’

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Motion to Dismiss. Before the Court is the Magistrate Judge’s Report and

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Recommendation (R&R) on the Defendants’ Motion to Dismiss. The Magistrate

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Judge recommends to the Court that the Motion to Dismiss should be

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granted and the action terminated. The Plaintiff filed Objections to the

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R&R and the Defendants filed a Response to the Objections.

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STANDARD OF REVIEW

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When objection is made to the findings and recommendation of a

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magistrate judge, the district court must conduct a de novo review.

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United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003).

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PLAINTIFF’S OBJECTIONS

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Plaintiff generally objects to all of the legal and evidentiary

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conclusions contained in the Report and Recommendation.

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clarifies to the Court that he is a “severely disabled pro se litigant

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receiving social security benefits.”

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further asserts that he should be allowed to file an amended complaint

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to attempt to cure the defects.

(Objection at 1.)

Plaintiff

Plaintiff

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DISCUSSION

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Before the Court is Plaintiff’s First Amended Complaint.

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addition, the EEOC dismissed Plaintiff’s claim and notified him of his

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right to file a lawsuit.

In

Defendants contended that the named individual

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employees were not subject to liability in their individual capacities

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under

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Plaintiff’s claims were untimely, unexhausted and legally insufficient.

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Title

VII

and

the

ADA.

Defendants

further

contended

The R&R recommends, as follows:

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For the foregoing reasons, Plaintiff’s First Amended

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Complaint should be dismissed as time-barred with regard to
claims

arising

up

to

and

including

his

May

11,

2007

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termination.

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Complaint should be dismissed for failure to state a claim

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with regard to Plaintiff’s allegations of post-employment

Additionally,

retaliation consisting of

Plaintiff’s

First

Amended

the posting of his image and

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security measures, including warnings to employees, allegedly

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taken

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Further,

by

Defendants
Plaintiff’s

concerning
First

Plaintiff

Amended

and

Complaint

his
should

son.
be

dismissed for failure to exhaust administrative remedies with

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regard to Plaintiff’s post-employment claim of discrimination

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and

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refused to contact him after receipt of his resume for job

retaliation

openings in 2010.

concerning

allegations

that

Securaplane

Alternatively, with regard to allegations

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that Defendants retaliated against Plaintiff by refusing to

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contact him after receipt of his resume for job openings in

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2010, the First Amended Complaint should be dismissed for
failure to state a claim.

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that

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In the Ninth Circuit a plaintiff must be given leave to

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amend his complaint unless it is absolutely clear that the
deficiencies of the complaint could not be cured by amendment.

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Noll

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superseded in part by 28 U.S.C. § 1915(e)(2)(B)(ii); see also

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Cook, Perkiss and Liehe, Inc. v. Northern Calif. Collection

v.

Carlson,

809

F.2d

1446,

1447

(9th

Cir.

1987),

Serv., 911 F.2d 242, 247 (9th Cir. 1991) (“We have held that

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in dismissals for failure to state a claim, a district court

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should grant leave to amend even if no request to amend the

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pleading was made, unless it determines that the pleading
could

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possibly

be

cured

by

the

allegation

of

other

Complaint

after

facts.”).

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not

Plaintiff

filed

his

First

Amended

receipt of Defendants’ Motion to Dismiss. The record is clear
that Plaintiff’s claims arising during his employment up to

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and including his May 11, 2007 termination are time-barred

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and,

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complaint. Additionally,

thus,

cannot

be

cured

by

further

amendment

of

the

amendment of the First Amended

Complaint could not cure Plaintiff’s claims of post-employment

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discrimination given that: (1) his claims concerning the

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posting

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measures

of

his

do

image

not

fall

at

Securaplane

within

the

and

other

purview

of

security

the

anti-

discrimination and/or anti-retaliation provisions of Title

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VII and the ADA; and (2) he has not exhausted administrative

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remedies concerning his claim that Securaplane’s failure to

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contact

him

upon

discriminatory

or

receipt

of

his

retaliatory,

resume

thus

in

rendering

2010
the

was
Court

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without jurisdiction over such a claim.

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if the EEOC Charge somehow encompassed Plaintiff’s claim of

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post-employment

retaliation,

further

Alternatively, even
amendment

of

the

complaint cannot cure the deficiencies regarding such claim

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given Plaintiff’s contention that the alleged retaliation was

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based upon his involvement in whistleblower activity and

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complaints

all

regarding

safety

issues

protected under Title VII or the ADA.

and

not

activity

Under the instant

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circumstances, further amendment of Plaintiff’s complaint

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would be futile.

See Lopez, 203 F.3d at 1127; Noll, 809 F.2d
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at 1448 (citing Broughton v. Cutter Labs., 622 F.2d 458, 460

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(9th

Cir.

1980)).

Therefore,

Plaintiff’s

First

Amended

Complaint should be dismissed without leave to amend.

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(R&R at 20 - 22.)

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Pursuant to Fed. R. Civ. P. 12(b), the district court may dismiss

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a complaint for failure to state a claim upon which relief can be

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granted, failure to effect proper service, lack of venue or personal

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jurisdiction,

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Whittington

or
v.

lack

of

federal

Whittington,

733

subject
F.2d

matter

620,

621

jurisdiction.
(9th

Cir.

See

1984).

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A pro se litigant’s pleadings should be liberally construed, and the

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litigant should be given leave to amend with instructions as to curing

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the deficiency unless the defects cannot be cured by amendment. See Lopez

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v. Smith, 203 F.3d 1122, 1124, 1127-29 (9th Cir. 2000) (en banc). The

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district court, in exercising its inherent power to control its docket,

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may impose sanctions, including the dismissal of a case. See Bautista v.

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Los Angeles County, 216 F.3d 837, 841 (9th Cir. 2000). However, where

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deficiencies in a second amended complaint are readily curable with some

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guidance from the court, dismissal without leave to amend is an abuse of

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discretion. See id.

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Here, the Court agrees with the R&R that any attempt to cure would

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be futile. The infirmity in Plaintiff’s action is not inartful pleading,

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but incurable procedural errors.

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legally accurate.

The R&R is factually thorough and

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CONCLUSION

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Accordingly, after conducting a de novo review of the record,

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IT IS ORDERED that the Court ADOPTS the Report and Recommendation

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(Doc. 30) in its entirety.

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Plaintiff are OVERRULED.

The Objections (Doc. 37) raised by the

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IT IS FURTHER ORDERED that Defendants’ Motion to Dismiss pursuant

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to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) (Doc. 13) is GRANTED and this

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action is terminated.

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A Final Judgment shall enter separately.1

DATED this 30th day of August, 2011.

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1

Although the filing of a notice of appeal generally divests the district
court of jurisdiction over those aspects of the case involved in the appeal, the
district court’s jurisdiction is not affected when a litigant files a notice of
appeal from an unappealable order. Estate of Conners v. O’Connor, 6 F.3d 656,
658 (9th Cir. 1993). “When a Notice of Appeal is defective in that it refers to
a non-appealable interlocutory order, it does not transfer jurisdiction to the
appellate court, and so the ordinary rule that the district court cannot act
until the mandate has issued on the appeal does not apply.”
Nascimento v.
Dummer, 508 F.3d 905, 908 (9th Cir. 2007). In such a case, the district court
“may disregard the purported notice of appeal and proceed with the case, knowing
that it has not been deprived of jurisdiction.” Ruby v. Secretary of the United
States Navy, 365 F.2d 385, 389 (9th Cir. 1966). The R&R was not an appealable
In addition, the R&R was not an
final order.
See 28 U.S.C. § 1291.
interlocutory order generally appealable under 28 U.S.C. § 1292(a), and the Court
did not provide the statement necessary to make the Order an interlocutory order
appealable under 28 U.S.C. § 1292(b) nor was the motion to file the appeal in
forma pauperis granted. The Notice of Appeal refers to a non-appealable
interlocutory order and, therefore, it did not divest the Court of jurisdiction
or preclude resolution of the pending R&R.

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